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Forgotten Federalism

Most Americans are aware of very few of their Constitutional rights, or more accurately, Constitutional protections. As kids we try unsuccessfully to "plead the fifth" when mom questions us about the broken lamp and as teenagers, we love to remind our parents of our right to free speech. But aside from these few, there's an unfortunate ignorance about our other protections, in particular the tenth amendment.

Following our first attempt at self governance, The Articles of Confederation, it became painfully evident that a more efficient means of governance was necessary. The Constitutional Convention convened and decided to scrap the ragtag Articles. They then proceeded to give us one of the greatest documents in human history -- the United States Constitution. The contingent loyal to the ideas embodied in the Articles (the Anti-federalists), those of minimalist government and state autonomy, presented their case for state powers, well enough that a compromise was arranged. The resultant Massachusetts Compromise indicated that in exchange for ratification of the Constitution, a Bill of Rights would be included. The last amendment to the Bill of Rights specifically addresses state powers.

Interestingly, what eventually became our tenth amendment was lifted from Article II of the Articles of Confederation. Federalist Papers 45 and 46 specifically address the idea of Federalism in a manner meant to allay the legitimate concerns of Anti-Federalists, who feared a centralized form of government would produce a disconnected soft tyranny. In Federalist 45 Publius, Madison wrote, "the state governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or oganization of the former." He went on to say, "the powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."

The prevailing argument through the Constitutional negotiations was that states would be responsible for all issues domestic and the federal government would deal with all matters foreign. Obviously, this is not the operating model we see before us today. "The number of individuals employed under the Constitution of the United States will be much smaller than the number employed under the particular states," Madison wrote. If only that were still the case. Of course our history is littered with battles over state powers, most notably the Civil War. But in an era of extreme federal government overreach, the tenth amendment may be our only saving grace.

One of the amazing parts of my job is that I get to travel all over the U.S. meeting patriots. Each and every state has its own culture, slightly different value systems, issues of concern, economic conditions and so on. With a country so vast and so diverse, it's naive to believe that one size fits all policies will satify the particular needs of all states equally, all the time. Our government was designed to allow states the freedom to govern their citizens without the constant watch of a federal overlord. Thomas Jefferson observed the same:

Our country is too large to have all its affairs directed by a single government. Public servants at such a distance, and from under the eye of their constituents, must, from the circumstance of distance, be unable to administer and overlook all the details necessary for the good government of the citizens; and the same circumstance, by rendering detection impossible to their constituents, will invite public agents to corruption, plunder and waste.

The very situation Jefferson and others foresaw is one that we observe daily. Of course, this brings us back to the function of federalism. States are excercising their tenth amendment powers to buck Obamacare, to fight the EPA, to push back against the bullying tactics of unions, and to protect the individual liberty of their citizens. Sadly, our current administration, by way of the Department of Justice, takes legal recourse against any state who refuses to walk lock-step with federal policy dictated not by the legislature, but by unelected agency bureaucrats.

For the next two years, Republicans will only have a majority in one branch of the legislature. That's precisely why it's even more crucial that we continue to fight back. Get involved in state and local level politics, support your state legislators and governors in their fight against federal overreach, organize your community around issues that help to regain invididual liberty and people will begin to vote with their feet. We can turn the tide and right now, the tenth amendment is the best weapon we have.

On behalf of our activist community, I urge you to contact your senators and representative and ask them to support the Protecting Data at the Border Act, S. 823 and H.R. 1899, introduced by Sens. Ron Wyden (D-Ore.) and Rand Paul (R-Ky.) and Reps. Jared Polis (R-Colo.) and Blake Farenthold (R-Texas). The bills would safeguard the Fourth Amendment rights of American citizens at the border.

“And at the U.S. Department of Education, Common Core is dead.”
This is music to the ears of advocates for federalism, school choice, and, frankly, for student success everywhere. These words came directly from U.S. Secretary of Education Betsy DeVos last week at a conference in DC titled “Bush-Obama School Reform: Lessons Learned,” held by the free-enterprise think tank American Enterprise Institute.

Coming off a week-long recess and without any significant legislative victories this year, the pressure is on the Senate this week to pass the FY 2018 budget resolution, S.Con.Res. 25, which provides reconciliation instructions for fundamental tax reform. The House passed its own version of the FY 2018 budget, H.Con.Res. 71, on October 5 by a vote of 219 to 206.

Over the past several months, Attorney General Jeff Sessions has taken a step back on federal justice reform efforts, regressing to purportedly “tough on crime” stances. From advising increased penalties for nonviolent offenders to more recently promising an increase in the use of civil asset forfeiture by the federal government, Sessions has been doing everything in his power to give the Department of Justice (DOJ)’s full support to 80s-era policies from which many conservatives have abandoned in favor of evidenced-based practices that reduce recidivism and enhance public safety.

As Congress considers welfare reform many are quick to point out the political roadblocks facing actual progress. Although the crumbling welfare apparatus has become a focal point in recent congressional discourse due to the efforts of House conservatives within the Freedom Caucus it will still be an uphill fight to get lasting reforms pushed through at the federal level.

On March 16, the Office of Management and Budget released the President’s proposal for a budget for the fiscal year of 2018. In summation, the President’s budget increased funding for all military related departments and entitlements programs and cut everything else. However, among some of his more controversial cuts was the decision to eliminate funding for the “arts.” Funding for programs such as the National Public Radio (NPR), the Public Broadcasting Service (PBS), the National Endowment of the Arts (NEA), and other “cultural programs” that having received support from the Federal government has been eliminated.

Yesterday, the US Court of Appeals for the DC Circuit officially ruled that the structure of the Consumer Financial Protection Bureau (CFPB) is unconstitutional, a criticism that has been leveled at the agency since its creation in 2010. The court found that so much unaccountable power was concentrated in the person of the director of the CFPB that it could not pass constitutional muster. Under the court’s ruling, the director now will be removable at will by the president, just like the head of any other agency. This represents an important blow for the system of separation of powers enshrined in the US Constitution.